Aboriginal Customary Law

Aboriginal law had lasted for hundreds of years before white settlement of Australia in 1788. The laws were based from the Dreamtime and were formed by ancestors, spirits and Aboriginal beliefs. These laws were passed down by a word-of-mouth tradition and as there were many different tribes consisting of many clans spread out over a large area, separate laws were adapted to specific tribes and areas. Aboriginal customary laws were developed and based on the aboriginal relationship to the land as well as the view that property (land) and individual belongings were owned by the community as a whole. All items were collectively used and land was not owned by a particular tribe.

Aboriginal customary law that governed aboriginal life was based upon unwritten rules based on lessons learnt from the dreamtime, kinship ties and relationships, ritual traditions, sacred and secular laws and clan consensus. The law from an aboriginal perspective was no different from daily lifestyle choices because the laws covered rules, morals religion and daily activities.

Sacred Laws taught acceptable behaviour, taught customary laws, governed the use of land and performance of rituals and was entrusted to the elders of each tribe. Secular Laws emphasised responsibilities and rights of individuals and their extended families, the importance of the land for both clan and individual and most importantly responsibility over children throughout their childhood life.

Aboriginal customary laws, before white settlement in 1788, were considered primitive by the British. When the British arrived in Australia they declared the land Terra Nullius. The British did not recognise the Aboriginal ownership of the land, more importantly they did not recognise the Aboriginal law and order system as civilised. This resulted in the British conveniently declaring sovereignty over Australia h declaring Australia commonwealth property and land. The Aboriginal concept of being traditional guardians of the land maintaining and preserving it "ceased to exist in the eyes of the law'" (Heinemann, 2000:224)

Traditional Aboriginal customary law was effectively banned and Aboriginal people were forced to conform to the British legal system as well as being restricted in their activaties such as holding meetings, carrying hunting weapons etc. it was extremely restrictive as Aboriginal peoples not following these rules were considered dangerous and either gaoled or shot.

Traditional Aboriginal laws and customs were not acknowledged to have existed until the the 1971 Miliripum v Nabalco Pty Ltd (the Gove Land Rights case). Even though the notion of terra nullius was upheld and native title rights were at this point denied, Judge Blackburn did acknowledge "the claimants' [the aboriginal people] ritual and economic use of the land and that they had an established system of law."

Aborigines had established " a subtle and elaborate system of social rules and customs which was highly adapted to a country in which the people lived and which provided a stable order of society remarkably free of the vagaries of personal whim or influence.' Blackburn, J decision in Miliripum v Nabalco (The Gove Land Rights Case) (1970) 17 FLR 141

Judge Blackburn's decisions on the law of Native Title were held until the High Court overturned the decisions in the Mabo v Queensland (No 2) case.

On the issue of terra nullius the High Court said:

"The Terra nullius doctrine is not part of Australian law. The historical facts do not fit the absence of law' or barbarian' theory which underpinned the reception of English law into Australia. Thus, the notion that Australia was terra nullius was dismissed by the High Court in Mabo." Mabo v Queensland (No.2) (1992) 175 CLR 1

In the Mabo case the court acknowledged that the Meriam tribe living at Murray Islands owned and had lived on the land. It allowed them to use and enjoy the land and to occupy it. "In terms of civil law,...

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